Introduction

Murder by Intent to Injure

Introduction

Common-law murder is the unlawful killing of another human being committed with malice aforethought.¹ The first two parts of that definition are easy to picture: one person causes another's death, and no justification such as self-defense and no excuse covers the act. The third part, malice aforethought, does the sorting work, because it separates murder from lesser homicides such as manslaughter. Despite the phrase, malice is a legal label for a family of culpable mental states rather than a single one. When no doctrine excuses the homicide or reduces it to voluntary manslaughter, malice exists if the defendant acted with any one of several recognized states of mind: intent to kill, intent to inflict great bodily injury, reckless indifference to an unjustifiably high risk to human life, or intent to commit a felony.² Because any one of them is enough, malice requires neither spite nor advance planning.

The mental state carries this much weight because criminal law reserves punishment for conduct that reflects a guilty mind, or mens rea, the feature that separates criminal liability from civil liability; both intent and recklessness can supply it.³ This chapter takes up the first of the unintended-killing routes to malice, the one in which the defendant did not set out to kill but did set out to inflict serious harm. A beating meant to hurt the victim badly, with no wish for death, ends with the victim dead. Is that murder, or something less, such as manslaughter, which covers killings that lack the special gravity of murder?⁴ The puzzle has force because the defendant's wish and the defendant's result do not match, and the law must decide which of the two fixes the grade of the crime.

The answer rests on what the defendant chose. A person who deliberately sets out to inflict grave injury on a human being has chosen to expose the victim to the kind of harm that kills, and when death follows, it is the very danger the defendant created. The law therefore attributes malice from that intent to injure, without requiring proof of a desire for death, and calls the result implied malice.⁵ The chapter proceeds in the order a fact pattern forces: the rule itself, what counts as serious bodily injury, how a jury decides what the defendant intended, what happens when the harm exceeds the plan, how this theory sits beside the other routes to malice, and where attempt law stops the theory from working. The first section begins with the rule, a killing committed with a deliberate intent to inflict great bodily injury.